Speaker 1: At ten pm on September third, two thousand and eight,
Speaker 1: forty six year old Dwayne Done returned to his Elkhart,
Speaker 1: Indiana apartment. He joined his girlfriend, Leitha Simms and their
Speaker 1: next door neighbor, sixty year old Angel Torres, who were
Speaker 1: having a few beers. The men's friendly conversation eventually turned
Speaker 1: into an argument, and Angel pulled out a bat. It
Speaker 1: should have ended when Dwayne and Leitha left Angel's apartment,
Speaker 1: but a few minutes later, Dwayne and Angel found each
Speaker 1: other again on their shared second story deck, abutted by
Speaker 1: a rickety set of stairs. Angel began swinging the bat
Speaker 1: at Dwayne, who was overheard telling Angel to stop, just
Speaker 1: before a series of audible thumps and thuds the sounds
Speaker 1: of Angel falling down the stairs. Police soon arrived to
Speaker 1: find Dwayne hovering over Angel as blood began to pool.
Speaker 1: He was rushed to the hospital, where he succumbed to
Speaker 1: his injuries a few days later. For two years, Dwayne
Speaker 1: swore in police statements and again a trial that he
Speaker 1: had neither pushed Angel Torres nor beaten at the bottom
Speaker 1: of those stairs. Yet the States expert witnesses disagreed, which
Speaker 1: appeared to be ironclad proof of Dwayne Dunn's guilt, but
Speaker 1: this is wrongful conviction. Welcome back to romful Conviction. Today,
Speaker 1: we're going to go back to Elkhart County, Indiana, a
Speaker 1: place once known as the r V capital of the world,
Speaker 1: but after what we've seen going on there, it could
Speaker 1: arguably be called the per capita wrongful conviction capital of
Speaker 1: the world. We're going to link some of the Elkhard
Speaker 1: cases we've covered so far in the episode bio. Not surprisingly,
Speaker 1: many of the same bad actors and troubling patterns are
Speaker 1: present once again in the case of Dwayne Dunn. And Dwayne,
Speaker 1: welcome to the show. Thank you. You know you got
Speaker 1: caught up in the Elkhart system, convicted for a murder
Speaker 1: that never happened. Right, People always like roll their eyes, like,
Speaker 1: what do you mean? The crime never happened. It never happened.
Speaker 1: A man named Angel Torres did, however, tragically lose his life.
Speaker 1: That's true, but that tragedy did not need to be
Speaker 1: compounded by yet another. And with us to cover this
Speaker 1: crazy story is an Indiana Deputy State Public defender. Dwayne's
Speaker 1: post conviction attorney, John Chenawi. So John welcome to the show.
Speaker 1: Thank you, and John. You're not the only person responsible
Speaker 1: for Dwayne's freedom, least of which is Dwayne, who had
Speaker 1: done a lot of pro sayliticant work on his own.
Speaker 1: But we'll also be joined later on by two more
Speaker 1: attorneys who fought for Dwayne in federal court. The director
Speaker 1: of the Indiana University School of Law Federal habeas Project,
Speaker 1: Michael Osbrook, and a public defender who was Michael's student
Speaker 1: at the time, Alex Doland, who Michael had tapped to
Speaker 1: handle oral arguments for Dwayne and ultimately was successful. So
Speaker 1: we're looking forward to speaking with them as well. But
Speaker 1: before we get into any of that, before your friend
Speaker 1: Angel's tragic demise, Dwayne, you had been leading an honorable
Speaker 1: life by anybody's definition, and you weren't originally from the
Speaker 1: Elkhart area, right.
Speaker 2: I grew up in Annapolis, went to George Washington High
Speaker 2: School and liked it, playing football, fishing, just stuff like that.
Speaker 2: Then I came to Elkhart later after I graduated and
Speaker 2: come up to Elkhart to work at the jobs. Back then,
Speaker 2: you can quit a job and go get a job
Speaker 2: the same day.
Speaker 1: So you were working in the RV industry.
Speaker 2: Yeah, Rby trailers tripping and receiving all that Forkliffe. I
Speaker 2: used to move those side walls for RB's, the big
Speaker 2: Rby's used to move the walls, the roof and the floors,
Speaker 2: all that. Just working and raising my family.
Speaker 1: Yep, you and your girlfriend Lea the Sims were raising
Speaker 1: two kids. And so in two thousand and eight, you're
Speaker 1: forty six years old and you're living in an apartment
Speaker 1: building at Elkhart and Angel Torre has lived in the
Speaker 1: apartment next door where both of your second story apartments
Speaker 1: shared a deck and the same rickety set of stairs
Speaker 1: leading up to or down from it.
Speaker 2: That's right. It's a normal stairs, like say if you're
Speaker 2: going up to a second floor apartment. But the railing
Speaker 2: was loose wooden stairs, and you know, we was always
Speaker 2: putting something on it because we were staring for the
Speaker 2: little kids when they were up there, that they were
Speaker 2: going to fall through the railing. So I had get
Speaker 2: some other kind of fencing to put up through there,
Speaker 2: and the metal poles were broke.
Speaker 1: Sounds pretty dicey, but okay, so you were you two
Speaker 1: guys friends?
Speaker 2: Oh yeah, well, we used to hang out, sit out,
Speaker 2: on the porch, drink beer. Sometime I'll have cookouts. He
Speaker 2: would come over sometime. He would cook come over, just
Speaker 2: doing navally.
Speaker 1: Things okay, and so on this particular night, the night
Speaker 1: of September thirty, two thousand and eight, what happened.
Speaker 2: Went out to walk the dog and came back. It
Speaker 2: was it was in the evening. It was late, probably
Speaker 2: around ten, and for some reason I went over his house.
Speaker 2: And I don't know if he was just drunk or wasn't.
Speaker 2: He got upset, got mad and asked me to leave.
Speaker 2: So I left, and then he went to go get
Speaker 2: his baseball bat of something. We tussled a little while
Speaker 2: and I left went in the house. For some reason,
Speaker 2: I just came back out on the porch, and I
Speaker 2: guess he seen me. He comes out on the porch,
Speaker 2: he had the bat in his hand. He reached and
Speaker 2: splut me across the bat with the bat. I said, man,
Speaker 2: you hit me with that bat again, We're gonna have
Speaker 2: a problem. And he reached to go hit again, and
Speaker 2: when I turned, he tumbled backwards down the stairs. He
Speaker 2: hit his head a couple of times going down the stairs,
Speaker 2: and when I seen him hit the bottom, I was like, man, damn,
Speaker 2: are you all right? And he didn't say nothing. So
Speaker 2: I walked down the stairs to go check on him.
Speaker 2: And when I checked on him, I was trying to
Speaker 2: step over the blood, but it was nothing I could do,
Speaker 2: so I shook him see if he moved. He didn't move.
Speaker 2: I came back upstairs at Lisa said what happened? I said,
Speaker 2: he tumbled down the stairs, he fell, and then Willie
Speaker 2: came out. He got on the cell phone and he
Speaker 2: called the police.
Speaker 1: And Willie is Leada's son, a teenager at the time,
Speaker 1: who also cased by the name of Jamar. So then
Speaker 1: what happened.
Speaker 2: Me and him walked down the stairs, went around his
Speaker 2: body and we stood on the street and I checked
Speaker 2: on him a couple of times, and then I would
Speaker 2: walk to the edge of the street to see if
Speaker 2: the police were coming. One police offer came and kept going,
Speaker 2: maybe another half a minute or so later. Then one
Speaker 2: come up to side street. He stopped and we waved
Speaker 2: him on. Then he came and pulled over. Then they
Speaker 2: went to check it on him, asked me what was
Speaker 2: going on, what had happened, and all this there and
Speaker 2: took pictures and all that.
Speaker 3: So when the police arrived at the scene, The paramedics
Speaker 3: are called and mister Torres is taken to the hospital
Speaker 3: for treatment. Some investigators from the police department arrive at
Speaker 3: the scene, They take photos, they collect evidence. So he
Speaker 3: was very severely injured and was taken off life support
Speaker 3: a couple of days after he was taken to the hospital.
Speaker 3: Back at the crime scene, the investigators when they first
Speaker 3: arrived had found a baseball bat underneath mister Torres's body,
Speaker 3: which they collected his evidence, and they spoke to the witnesses,
Speaker 3: and they spoke to Duwayne. They found some blood spatter
Speaker 3: at the scene which they photographed.
Speaker 1: Let's talk about that blood spatter. From what I've read
Speaker 1: about your case, the state's theory eventually became that Dwayne
Speaker 1: had beaten him with an unknown object after the fall,
Speaker 1: and there were what were categorized as cast off patterns
Speaker 1: on surrounding objects and surfaces from the alleged repeated swings
Speaker 1: from this sole edged, unidentified bludgeting tool. Now, curiously, though
Speaker 1: there was no cast off on your clothing, when anybody
Speaker 1: would know the most amateur sleuth in the world would
Speaker 1: know that you would have been covered in blood had
Speaker 1: you repeatedly struck Angel, but of course that was not
Speaker 1: the case, nothing like it.
Speaker 3: They found a little bit of blood on Duayne's shoe
Speaker 3: and a little bit of blood on the inside of
Speaker 3: the shorts that you were wearing. And there was no
Speaker 3: doubt that Dwayne had been at the bottom of the
Speaker 3: staircase trying to help mister Torres, and mister Torres was
Speaker 3: bleeding at that time, so if blood ended up on Dwayne,
Speaker 3: that would not have been surprising.
Speaker 1: So not only is that blood easily explainable, but so
Speaker 1: are the spatter patterns. And as it turns out, while
Speaker 1: Angel Torres's blood was in fact pooling on the ground,
Speaker 1: quite a few people had trampled through the scene.
Speaker 2: Yeah, the paramedics walked through it. All the police were
Speaker 2: in it. They took the baseball battis and picked it
Speaker 2: up and leaned it up against the car.
Speaker 1: And the bat was the only freaking thing they ever found.
Speaker 1: As we mentioned, it was under his body with no spatter,
Speaker 1: and a thorough search was conducted. There were no other
Speaker 1: implements on the scene. So anyway, the police brought you
Speaker 1: in for questioning.
Speaker 2: The first two detectives that were on the case. They
Speaker 2: kept me down there, and they went to every place
Speaker 2: I told them I went. They went to go check.
Speaker 2: Then they came back and they said all right. Then
Speaker 2: they came back the next day. The clothes. They put
Speaker 2: it all in bags, and they said, well, we're going
Speaker 2: to go send this to the lab and test it.
Speaker 2: I said, no problem.
Speaker 1: And as we mentioned, there was a droplet of Angel's
Speaker 1: blood discovered on your shoe and on the inside leg
Speaker 1: of your shorts, which was consistent with you having entered
Speaker 1: the scene having tried to help your friend, but definitely
Speaker 1: not consistent with multiple swings of a blunt object and
Speaker 1: blood flying everywhere. In fact, you were the only one, ironically,
Speaker 1: that was hit with a blunt object.
Speaker 3: When they took Dwayne in for questioning, they took photographs
Speaker 3: of his body and they found injuries where Dwayne had
Speaker 3: been hit by the baseball bat by mister Torres. They
Speaker 3: found clear evidence that he had been struck at least
Speaker 3: several times. Everything they found at the scene in terms
Speaker 3: of the physical evidence, was matching up with what Dwayne
Speaker 3: and Letha and Jamar were saying that happened.
Speaker 1: Now, the police had also questioned Letha and her son,
Speaker 1: who were the only two witnesses to what happened. What
Speaker 1: did they tell the police?
Speaker 2: Nothing that Dwayne ever touched them, That that was what
Speaker 2: was said. They investigated for a while. Look, I say,
Speaker 2: maybe thirty forty days later, maybe two months, the two
Speaker 2: detectives came back to my house one day. I said,
Speaker 2: mister dumfar as we concerned, this case is closed because
Speaker 2: we can't find anything.
Speaker 1: I said, all right, right at this point, Letha and
Speaker 1: Jami saying that you hadn't touched him, that they had
Speaker 1: heard him fall down the stairs, and had come rushing
Speaker 1: out to see what the commotion was and hadn't witnessed
Speaker 1: any beating. After that, even the autopsy hadn't ruled that
Speaker 1: the cause of death was homicide, but rather the cause
Speaker 1: of death was deemed uncertain. So for all of the
Speaker 1: reasons I just mentioned, signs pointed clearly to an unfortunate accident.
Speaker 1: But the chief deputy prosecuting Attorney, Vicki Becker, wasn't taking
Speaker 1: that as an answer.
Speaker 2: I say, maybe six months after that, she put us
Speaker 2: somebody else in the case. He brings me downtown and we.
Speaker 1: Saw the same thing in Andy Royer, Atlanta Canan's case,
Speaker 1: where after their case went cold, A new detective was
Speaker 1: assigned to close it, and again, just like Andy, they
Speaker 1: tried to get a confession out of you.
Speaker 2: He's the one that started pushing the issue. Are you
Speaker 2: hitting you did this? You did that? Just you know
Speaker 2: you kicked him? You did that? I said, man, I
Speaker 2: don't know what you're talking about. I ain't did nothing.
Speaker 2: He said, well, what if we got a witness to say,
Speaker 2: is that you kicked him? I said, well, your witness
Speaker 2: is lying. He said, well today you're going home, he said,
Speaker 2: but I want you to know it. We're still owing this.
Speaker 2: So I guess at the same time where they were
Speaker 2: bringing me, I guess they would bring at least to
Speaker 2: them in. And that's who he was really trying to pressure.
Speaker 2: She said. The officer told her that you know the
Speaker 2: Wayne kicked him. You know the Wayne hit him, don't you?
Speaker 2: And she said, well, they've kept pressing her so tough
Speaker 2: that she went on to say it. She said what
Speaker 2: he told her to say. She even said it at
Speaker 2: the trough. I believe that's how they got the warm.
Speaker 1: Now they had enough to get an arrest warrant, but
Speaker 1: they needed to find some way to support what they
Speaker 1: knew was a shaky and patently false statement. I mean
Speaker 1: Letha eventually went on to RecA the trial. So now
Speaker 1: we see another move that we've seen before in Elkhart,
Speaker 1: in Andy Royer's case, when the Indiana Police Lab wasn't
Speaker 1: giving Vicky Becker the fingerprint analysis that she wanted, so
Speaker 1: she tapped fingerprint analysis, knowing fingerprint analysis fraud David Chapman
Speaker 1: for a second opinion. In this case, the person who
Speaker 1: had performed the original autopsy, doctor Blair Trenkett, had grew
Speaker 1: the cause of death uncertain not a homicide, so they
Speaker 1: fished around for two years to find a second opinion,
Speaker 1: or rather an opinion they liked from doctor Scott Wagner.
Speaker 2: He said it was a homicide, but all he ever
Speaker 2: seen was the pictures. He never looked at the body
Speaker 2: or anything.
Speaker 3: Doctor Wagner agreed that the cause of death was blunt
Speaker 3: for its trauma and that mister Torres had died as
Speaker 3: a result of skull fractures and other injuries. Where he
Speaker 3: disagreed with doctor Trnka is that whereas doctor Trenka said
Speaker 3: that the manner of death couldn't be determined because he
Speaker 3: didn't know whether it was a fall or whether mister
Speaker 3: Torres had been injured at the bottom of the staircase.
Speaker 3: Doctor Wagner was certain that mister Torres had been injured
Speaker 3: at the bottom of the staircase. The staircase at Dwayne's
Speaker 3: place was about six seven feet down to the pavement,
Speaker 3: and doctor Wagner didn't believe that the injuries suffered by
Speaker 3: mister Torres could have been caused by a fall down
Speaker 3: a staircase of that length. He thought the injuries were
Speaker 3: so severe they must have been caused by a beating.
Speaker 3: So he determined that the manner of death was homicide.
Speaker 2: But when I kept trying to tell them and explain
Speaker 2: to him that when he slipped, he tumbled at least twice,
Speaker 2: he flipped head over foot at least twice before he
Speaker 2: hit the ground.
Speaker 3: I mean mister Torres suffered severe injuries. There was no
Speaker 3: doubt about that. But there was an explanation, There was
Speaker 3: a scientific, medical explanation for why those injuries were so serious,
Speaker 3: and they were due to the condition of mister Torres.
Speaker 3: He was out of shape, he was an alcoholic, he
Speaker 3: had a pacemaker, His bones were weak, he bled easily,
Speaker 3: his liver was susceptible to being injured because it was
Speaker 3: so swollen from the alcoholism, and a fall down even
Speaker 3: a short staircase can cause really severe injuries, especially to
Speaker 3: someone who's susceptible to injuries like mister Torres was, and
Speaker 3: the nature of the injuries were such that they looked
Speaker 3: like they had been caused by a fall. They weren't
Speaker 3: consistent with a beating.
Speaker 1: Dwayne, did you know now they had what they needed
Speaker 1: to get a conviction.
Speaker 2: Yeah. I remember the morning that they came to the door.
Speaker 2: I got ready to go to work and uh knot
Speaker 2: came on the door. My brother went and got it.
Speaker 2: He said. The police come to the door and they said,
Speaker 2: a Dwayne done here. He said, Bro, they looking for you.
Speaker 2: I said, open the door, let him in. I ain't
Speaker 2: dead none. So he came to the door. He said you Dwayne.
Speaker 2: He said, well, I need you to step outside. Said
Speaker 2: we got a warrant for your arrest. I said, a
Speaker 2: warrant A warmth for what he said, murder? I said,
Speaker 2: oh my god, turn around and put my hands up,
Speaker 2: cuffed me, put me in the car.
Speaker 1: So you were charged with first degree murder and awaited
Speaker 1: trial in jail for nine long months, and you were
Speaker 1: assigned Cliff Williams, the chief public defender for Elkhart County.
Speaker 3: I don't think much of anything was done for Dwayne
Speaker 3: in terms of investigation prior to going to trial, and
Speaker 3: in fact, Cliff Williams, there's a lot he could have
Speaker 3: done that he did not do.
Speaker 2: The trial started on a Monday. He came to see
Speaker 2: me on that Friday. This was one of only two
Speaker 2: times he came to see me the whole time I
Speaker 2: was in the jail. And then he was telling tell
Speaker 2: me that he's going to prepare over the weekend, and
Speaker 2: he had another attorney with him. She was as an assistant.
Speaker 2: I don't remember her name, but she was there. So
Speaker 2: we were talking and he was talking about, well, the
Speaker 2: state's going to have experts. We're gonna let them talk.
Speaker 2: I'm not going to question them too much. I kept
Speaker 2: looking at him and I'm like, man, And she asked him, well,
Speaker 2: why don't we have experts, and he looked at her
Speaker 2: and told her something to do with the money or
Speaker 2: something like that. I looked back, man, hold up, wait
Speaker 2: a minute, you'd be telling me who's going to testify
Speaker 2: on my side? He said, well, right now, this is
Speaker 2: just gonna be us. I looked at him, I'm like,
Speaker 2: oh my.
Speaker 1: God, We're going to take a quick break and we'll
Speaker 1: be right back. The Pacers Foundation is a proud supporter
Speaker 1: of this episode of Rawful Conviction and of the Last
Speaker 1: Mile organization, which provides business and tech training to help
Speaker 1: incarcerated individuals successfully and permanently reenter the workforce. The Pacers
Speaker 1: Foundation is committed to improving the of Hoosiers across Indiana,
Speaker 1: supporting organizations that are dedicated primarily to helping young people
Speaker 1: and students. For more information on the work of the
Speaker 1: Pacers Foundation or the Last Mile program, visit Pacersfoundation dot
Speaker 1: org or the Lastmile dot org. So all you've got
Speaker 1: is your girlfriend and her son, and we know, and
Speaker 1: listeners of the show know that loved ones are usually
Speaker 1: explained or rationalized away very easily by the state. So
Speaker 1: it almost sounds like he planned on losing, so that process.
Speaker 1: The trial began in January twenty eleven in front of
Speaker 1: Judge Terry Schumacher. The prosecution presented the questionable second opinion
Speaker 1: of doctor Wagner and then a guy named Dean Marx
Speaker 1: as well.
Speaker 3: Dean Marx is a blood spatter expert, and he testified
Speaker 3: that there were numerous areas of blood spatter at the
Speaker 3: scene and that's some of that blood spatter had been
Speaker 3: caused by cast off, meaning that there was an object
Speaker 3: that had blood on it that had been swung, and
Speaker 3: that the blood had been cast off of this object
Speaker 3: and landed on different surfaces side of the building, a car,
Speaker 3: and that indicated that mister Torres had been killed with
Speaker 3: a blunt object and that the blood spatter at the
Speaker 3: scene was caused by the swinging of this object. And
Speaker 3: the state conceded at trial that the baseball bat was
Speaker 3: not the weapon that had been used because there was
Speaker 3: no blood on the baseball bat.
Speaker 1: And as we now know, blood spatter analysis has been
Speaker 1: totally debunked as what it is, which is junk science.
Speaker 1: It's not science at all. In fact, we did a
Speaker 1: deep dive into this kind of quote unquote evidence and
Speaker 1: testimony in our podcast Wrongful Conviction Junk Science, which of
Speaker 1: course was hosted by the great Josh Dubin. So we'll
Speaker 1: have a linked in the bio and which you'll find
Speaker 1: out that most of these quote unquote the lists are
Speaker 1: other cops who have taken just a forty hour course,
Speaker 1: yes you heard that right, A forty hour course about
Speaker 1: how to testify convincingly about the fluid dynamics of blood,
Speaker 1: a subject that they don't know shit about nothing. So
Speaker 1: it's almost like an acting course more than anything else.
Speaker 1: It would be laughable if it wasn't so sinister.
Speaker 3: And you have to keep in mind we talked about
Speaker 3: this previously, but at the scene, there are pools of
Speaker 3: blood near mister Torres's body, and multiple people are stepping
Speaker 3: in these pools and they're causing blood to splash, They're
Speaker 3: getting blood on their shoes, which is then being cast
Speaker 3: off as they walk. Numerous people, paramedics, police officers, maybe
Speaker 3: even Dwayne when he was trying to help mister Torres
Speaker 3: at the bottom of the staircase. And as this progresses,
Speaker 3: and as the investigation continues, immediately after, it begins to rain.
Speaker 3: So now you've got rain and the rain drops are
Speaker 3: coming down, and any one of these things could have
Speaker 3: caused the spatter, and Marx did not consider any of
Speaker 3: that in his testimony.
Speaker 1: And unfortunately, most people serviana jury are going to be
Speaker 1: unaware that this so called expert was merely jumping to
Speaker 1: conclusions and not ruling out all of these other possibilities. Instead,
Speaker 1: this expert was only an expert in testifying or test
Speaker 1: the lying. Let's call it what it is, to whatever
Speaker 1: the state's theory was, and it'll become clear that Wagner
Speaker 1: was no different. Yet, this really was all they had
Speaker 1: against the word of what, unfortunately can be considered two
Speaker 1: interested parties. So what did Litha and Willie say on
Speaker 1: the stand?
Speaker 3: Willie testified that he had seen mister Torres go after
Speaker 3: Dwayne with the baseball bat, and that Dwayne was defending himself,
Speaker 3: and that during this struggle, mister Torres lost his balance
Speaker 3: and fell backwards down the steps, and as he was falling,
Speaker 3: his back hit the banister of the steps, and he
Speaker 3: sort of flipped over and landed on the pavement at
Speaker 3: the bottom of the staircase. Leitha testified that she heard
Speaker 3: the commotion. She comes out of the apartment and she's
Speaker 3: standing on the balcony and she sees mister Torres at
Speaker 3: the bottom of the staircase, and she sees Dwayne trying
Speaker 3: to help mister Torres and trying to help him up
Speaker 3: to his feet, and neither one of them ever testified
Speaker 3: that they saw Dwayne striking mister Torres while he was
Speaker 3: laying on the pavement. They didn't see anything other than
Speaker 3: Dwayne trying to help mister Torres after he fell down
Speaker 3: the steps.
Speaker 1: And not only did they corroborate Dwayne's verdic of events,
Speaker 1: but also Leva testified that the detective had bullied her
Speaker 1: into saying Dwayne was guilty just in order to get
Speaker 1: the arrest warrant. And Cliff Williams did and back point
Speaker 1: that out.
Speaker 2: Yeah, So he said, now, you said, the detective that
Speaker 2: forced you and made you say that, is he here? And
Speaker 2: she said yeah, and she pointed him out. But the jury,
Speaker 2: I guess they just overlooked it.
Speaker 1: So it appears mister William's efforts were just not enough.
Speaker 3: You have two lay people who were not scientists, testifying
Speaker 3: about what they saw, and the state has two experts
Speaker 3: with all sorts of degrees and training going to testify
Speaker 3: that this was a homicide. You can't take the risk
Speaker 3: of the jury believing the experts over the lay people.
Speaker 3: You have to prepare the case such that you have
Speaker 3: your own experts. Then you can combine the eyewitness testimony
Speaker 3: with the expert testimony and have a full defense, and
Speaker 3: the only party that had expert testimony was the state.
Speaker 1: And unfortunately he was facing Vicky Becker, who was willing
Speaker 1: to go even farther than that.
Speaker 3: There was a line that the prosecutor used in their
Speaker 3: closing argument to the jury in which they were referring
Speaker 3: to Litha and Jamar and their testimonies, and the prosecutor
Speaker 3: said to the jury, you don't find swans in a sewer.
Speaker 1: Wow, not only had one of your friends died, but
Speaker 1: now you your girlfriend, life partner, and young Willie. All
Speaker 1: black people were being called by this white prosecutor human waste,
Speaker 1: certainly not swans in her telling, white as the driven snow.
Speaker 1: And she said this just as the jury was sent
Speaker 1: out to deliberate. So what was it like when they
Speaker 1: came back in.
Speaker 2: Well, at first I kind of looked at him, and
Speaker 2: then I kind of had that feeling like, man, they
Speaker 2: getting ready to come back with a guilty verty. They
Speaker 2: sentenced me to fifty eight years, first time ever been
Speaker 2: in prison, almost fifty years old. Now I'm here, I
Speaker 2: am on my way to prison, and I couldn't wonder
Speaker 2: what my mother was thinking, my kids are thinking. I mean,
Speaker 2: I mean, and they talked about be bad on TV
Speaker 2: the news. I mean, it's like I was someone a murderer.
Speaker 2: Then the newspapers talking like, oh I didn't robe him
Speaker 2: and beat him and did all this. I ain't never
Speaker 2: even touched him, man, And now I'm going to prison.
Speaker 1: But you didn't take this lying down. From what I understand,
Speaker 1: just like on the outside, you went to work. You're
Speaker 1: a worker, that's what you've always done, and now you
Speaker 1: had your life at stake.
Speaker 2: So I had to learn how to do the law work,
Speaker 2: learn how to look up, how to look up cases,
Speaker 2: because I couldn't let that go. I kept thinking in
Speaker 2: my mind, man, I can't let them get away with this.
Speaker 2: You know this can't happen like this. So I just
Speaker 2: went to work. I had an attorney in mister Walker.
Speaker 2: She did the direct appeal, but she already told me
Speaker 2: that if you don't have something blunt, it just turns around,
Speaker 2: it's going to, you know, smack them in the face.
Speaker 2: That they're going to shoot that down. And they did.
Speaker 1: And it's worth noting that the hearing was held in
Speaker 1: front of the same judge, Terry Shoemaker. So now the
Speaker 1: appeal moved on from direct appeal to state post conviction,
Speaker 1: and Dwaine, you were working on your own at that point,
Speaker 1: filing your own motions before John got involved.
Speaker 2: So my best issue was there expert witness. Why didn't
Speaker 2: I have an expert witness? And then the jury to me,
Speaker 2: it wasn't a fair jury. Now I'm a black man,
Speaker 2: Neil cart Why any black jewors? There was forty nine
Speaker 2: prospective jurors and there was only one black juror. When
Speaker 2: they got to the black juror, Shoemaker struck him down,
Speaker 2: the judge himself because he said he knew him when
Speaker 2: he was a prosecutor. So now I'm looking up there me,
Speaker 2: I'm like, man, this can't be right. It can't be fair.
Speaker 1: And while that is a very important issue, one of
Speaker 1: the crux of so much of the injustice in our system,
Speaker 1: it can be very difficult to get traction in court
Speaker 1: rather than the ineffectiveness of your trial counsel, which John
Speaker 1: latched onto when the case fell on his desk. And
Speaker 1: John finally did what your trial attorney simply did not,
Speaker 1: which was to look for a forensic pathologist who was
Speaker 1: not part of the Elkhart machine to review the case.
Speaker 3: And I found someone, a forensic pathologist by the name
Speaker 3: of doctor Thomas Sosio. He was unequivocal that all of
Speaker 3: the injuries suffered by mister Torres had been caused by
Speaker 3: a fall down the steps. He knew from the witness
Speaker 3: testimony that there had been an altercation. He didn't know
Speaker 3: if mister Torres had lost his balance and fallen down
Speaker 3: the steps. He didn't know if mister Torres had been
Speaker 3: pushed down the steps. But he knew that the injuries
Speaker 3: that mister Torres suffered had been caused by the fall,
Speaker 3: not by a beating. And he knew that for several reasons.
Speaker 3: Number one, all of mister Torres's injuries occurred in a
Speaker 3: straight line across his body. So the skull fractures, the
Speaker 3: broken shoulder, the broken ribs, the lacerated liver all occurred
Speaker 3: in a straight line down his body. And to doctor Sosio,
Speaker 3: that indicated that all of those injuries had occurred when
Speaker 3: that side of mister Torres's body hit the pavement. If
Speaker 3: mister Torres had been beaten with a blunt object, doctor
Speaker 3: Sosio would have expected to see injuries on various parts
Speaker 3: of his body, not in a line but more random,
Speaker 3: you know, as if someone had hit him in his
Speaker 3: head there, hit him in his rear there. When someone
Speaker 3: is beaten with an object, you don't see all of
Speaker 3: the injuries in a straight line across the body. They're
Speaker 3: more varied across the body.
Speaker 1: In addition to that, though, there were even more reasons,
Speaker 1: which we mentioned earlier, that the States expert doctor Wagner
Speaker 1: hadn't considered, or just you know, put blinders on and ignored.
Speaker 3: The level of alcohol that was in mister Torres' system.
Speaker 3: The alcoholism, long term had made mister Torres susceptible to
Speaker 3: severe injuries. It had caused osteoporosis, which made his bones
Speaker 3: more susceptible to breaking. It had caused his liver to
Speaker 3: be enlarged and more susceptible to damage. There was only
Speaker 3: one laceration on the skull, which is consistent with the fall.
Speaker 3: If mister Torres had been beat with the bat, doctor
Speaker 3: Sosio would have expected to see more lacerations on the skull.
Speaker 3: And so for all of those reasons, doctor Sosio was
Speaker 3: adamant that his death and his injuries had been caused
Speaker 3: by a fall, not by a beating.
Speaker 1: So you guys were able to get an evidentiary hearing.
Speaker 1: You got an expert whose summation destroyed the state's case.
Speaker 1: And by now, of course, it's all the way up
Speaker 1: to twenty seventeen, and blood spatter analysis had been fully
Speaker 1: debunked and exposed as a junk science, and Judge Shoemaker
Speaker 1: had retired, so he was out of the way.
Speaker 3: The new judge who had been elected to take Judge
Speaker 3: Shoemaker's place, had been a public defender in prior practice,
Speaker 3: and so I was cautiously optimistic that the new judge
Speaker 3: was going to give us a fair shake. But when
Speaker 3: we arrived at the hearing date, the new judge was
Speaker 3: away at the new judge training session, and so, much
Speaker 3: to my surprise, the hearing starts, court is called the
Speaker 3: order and Judge Shoemaker walks out from the chambers and
Speaker 3: sits down on the bench. And that was that was
Speaker 3: an unpleasant surprise as far as I was concerned.
Speaker 1: Yeah, unpleasant to say the least. I mean, he ruled
Speaker 1: that you failed to establish that this new evidence would
Speaker 1: have changed the outcome and trial, and the Indiana Court
Speaker 1: of Appeals upheld the decision, even though this testimony refuted
Speaker 1: the state's.
Speaker 2: Case during the trial. There was no time that they
Speaker 2: hurt anything like that. They were always kept hearing beating, beating, beating, beating.
Speaker 2: And the thing that we needed, all we needed was
Speaker 2: one juror. So who's to say what one juror would
Speaker 2: have said?
Speaker 4: Right?
Speaker 3: So, the question is not does this new evidence prove
Speaker 3: that the jury would have acquitted Dwayne? The question is
Speaker 3: whether it's there's a reasonable probability that this evidence would
Speaker 3: have made a difference to at least one juror. So
Speaker 3: Judge Shoemaker and the Indiana Court of Appeals were applying
Speaker 3: a much more stringent standard than what the law calls for.
Speaker 1: Not only that, but Shoemaker also stuck his head right
Speaker 1: in the sand when Cliff Williams took the stand to
Speaker 1: admit his ineffectiveness.
Speaker 3: Cliff Williams was still with us at the time that
Speaker 3: we presented our case to Judge Shoemaker, and he testified
Speaker 3: that he never deposed the state's experts, He never tried
Speaker 3: to consult with an expert of his own, and he
Speaker 3: didn't have any reasons for that. It wasn't a matter
Speaker 3: of strategy, it was just something that he had overlooked,
Speaker 3: and he admitted it. He admitted that he had made
Speaker 3: a mistake, and that's something that Judge Shoemaker and the
Speaker 3: Indiana courts paid insufficient attention to, and it's something that
Speaker 3: the federal courts really relied on.
Speaker 1: So now you had to file your federal haby's appeal
Speaker 1: in twenty eighteen, and you finally didn't have to deal
Speaker 1: with Shoemaker anymore.
Speaker 2: I said, well, maybe we can get a break now
Speaker 2: now that we're not in front of him. It's out
Speaker 2: of his court and it's out of Elkhart period.
Speaker 3: And what you have to remember is that Dwayne was
Speaker 3: on his own. I don't practice in federal courts. Dwayne
Speaker 3: was not represented by an attorney. He was representing himself,
Speaker 3: and his federal habeas petition was dismissed as untimely. Dwayne
Speaker 3: by himself, got it back on track, got his petition
Speaker 3: back in front of district court judge. Then, working by himself,
Speaker 3: he convinces the judge that he's entitled to a new trial,
Speaker 3: that the Indiana courts have got it wrong. He's not
Speaker 3: a lawyer, he's in prison. He's having to do all
Speaker 3: this by mail, and he made it happen for himself.
Speaker 1: This brings us up to December of twenty twenty and
Speaker 1: you're going up in front of Judge Philip Simon. Judge
Speaker 1: Simon refused the case. Everything you brought up in your
Speaker 1: appeal and all the ways the trial went wrong, which
Speaker 1: are considerable as we've already seen. And then on top
Speaker 1: of that, he agrees that Judge Shoemaker applied the wrong
Speaker 1: legal standard when he denied your petition for a new trial.
Speaker 3: If you apply the right standard, it's pretty clear that
Speaker 3: doctor Sosio's testimony there's a reasonable probability it would havemit
Speaker 3: a difference for the jury.
Speaker 1: And it certainly shows that there was in effective assistance
Speaker 1: of counsel in Dwayne's case. So at this point things
Speaker 1: were finally starting to look up.
Speaker 2: Well, yeah, man, I start to see daylight again. I
Speaker 2: mean I might, I might have a chance. But then
Speaker 2: you know, they got to go through the appeal process
Speaker 2: because they get the same their sade gets the same
Speaker 2: appeals that we do. So now I'm going my way
Speaker 2: to the Seventh Circuit and this is where you got
Speaker 2: three judges. So I didn't know really what to expect
Speaker 2: there because so when you know I wouldn't know a
Speaker 2: federal lawyer. That's when Michael took over.
Speaker 1: And that would be Michael Hosbrook, director of Indiana University
Speaker 1: Morror School of Law's Federal Habeas program. And as it happens,
Speaker 1: he's right here with us today. Michael, it's about time. Welcome.
Speaker 1: I'm so glad to welcome you to a wrongful conviction.
Speaker 4: Thanks Jason.
Speaker 1: We also have Alex Dolan, who at the time was
Speaker 1: one of your law students, I understand, and then went
Speaker 1: on to become a public defender. Alex, Welcome, Thanks Jason.
Speaker 1: So let's pick up the story here with you guys.
Speaker 1: It's twenty twenty and Dwayne is getting ready to file
Speaker 1: his appeal, the federal Habey's appeal. How did you two
Speaker 1: get involved?
Speaker 4: It was sort of an insight job. I got an
Speaker 4: RSS feed of everything that's filed in the Southern and
Speaker 4: Northern districts of Indiana, and I look at them every day.
Speaker 4: That's that's thirteen hundred filings, but I know which are
Speaker 4: the habeas cases. And I saw Judge Simon's order granting
Speaker 4: Dwayne relief and said to myself, well, the state's going
Speaker 4: to appeal that. And I arranged for the Seventh Circuit
Speaker 4: to appoint us in the case.
Speaker 5: Michael called me not long after the Seventh Circuit had
Speaker 5: appointed us and he told me, Hey, I have this
Speaker 5: case and I want you to argue for it. And
Speaker 5: as we went through it and I was reading everything
Speaker 5: about Dwayne's case, I remember thinking what an injustice it was,
Speaker 5: and how frustrated I was, and how at that point
Speaker 5: he was basically losing every step of the way in
Speaker 5: the state courts due to some misapplication of the law,
Speaker 5: misunderstanding of the facts.
Speaker 4: From the start, Cliff Williams, Dwayne's trial lawyer, misunderstood the
Speaker 4: cases being about the bat. As we put in our brief,
Speaker 4: this case was never about the bat. Then, one of
Speaker 4: the lines that sticks with me from this case is
Speaker 4: doctor sozio on Cross saying to me, it's a fall
Speaker 4: all day.
Speaker 5: And if I could just talk about Dean Marx for
Speaker 5: a second and sort of this category of what they
Speaker 5: call blood splatter science. Dean Marx himself had actually been
Speaker 5: involved in another wrongful conviction case of a man named
Speaker 5: David Cam from southern Indiana who was accused of murdering
Speaker 5: his wife and his children. Mister Cam had a significant defense.
Speaker 5: But one of the reasons why he was convicted was
Speaker 5: his testimony of a blood sploider expert, and Dean Marx
Speaker 5: was on that panel of experts who made that determination.
Speaker 5: So not only is this guy a junk scientist, but
Speaker 5: he's actually been involved in a different case that that
Speaker 5: was also a wrongful conviction.
Speaker 4: So Judge Simon absolutely dismantled in his opinion the state's
Speaker 4: case against Dune and then Alex in the Seventh Circuit.
Speaker 4: I mean, I cannot tell you how terrific his preparation
Speaker 4: and presentation this was. He laid out all the pieces
Speaker 4: of the state's dismantled case and showed the Seventh Circuits
Speaker 4: that they could not be put back together again. But
Speaker 4: Judge Kirsch, who dissented in the Seventh Circuit opinion, was
Speaker 4: convinced that all the injuries to Angel Torres were the
Speaker 4: result of a severe beating, and he misunderstood the case.
Speaker 4: The state never argued that the rib fractures and the
Speaker 4: damage to Torres's liver, for example, were the result of
Speaker 4: a beating. The state's case was only that he'd been
Speaker 4: hit over the head. So you have Cliff Williams. He
Speaker 4: doesn't understand that it's not about the bat. You have
Speaker 4: the Indiana Court of Appeals misunderstanding what undetermined means, and
Speaker 4: then you have Judge Kirsch misunderstands that this was a beating.
Speaker 5: There was one moment where I got to very forcefully
Speaker 5: say no, no to him misstating a fact. And you know,
Speaker 5: to me, from the public defender mindset, the best thing
Speaker 5: that I can ever do for a client is push
Speaker 5: back when somebody in authority is incorrect or attempting to,
Speaker 5: you know, violate my client's' rights.
Speaker 1: So after Alex gets up in front of this three
Speaker 1: judge panel arguing all the points that we've been talking about, Dwayne,
Speaker 1: you tell us what ultimately happens. We win, right, They
Speaker 1: actually upheld Judge Simon's ruling.
Speaker 2: That's right that there should have been another expert witness
Speaker 2: on our side. The jury should have hurt, you know,
Speaker 2: something different.
Speaker 1: So you've had your victory in the seventh circle. But
Speaker 1: now they have an opportunity to take this to the
Speaker 1: US Supreme Court or potentially retry Dwayne if they chose to.
Speaker 1: And again, this is Vicky Becker. She'd been willing to
Speaker 1: do a lot, and so they had sixty days to
Speaker 1: decide or you'd be released, which would have been just
Speaker 1: before election day twenty twenty two, when Becker was running unopposed, which,
Speaker 1: by the way, someone needs to do something about that
Speaker 1: next time around. Somebody, if you're out there and you're
Speaker 1: a listener and you're a lawyer and you're thinking about running,
Speaker 1: give us a call. At wrongful conviction, we got you.
Speaker 1: But that's a topic for another time. The point is here,
Speaker 1: she had nothing to lose or gain by releasing him
Speaker 1: or choosing to retry you.
Speaker 4: I think it was Friday afternoon before we were going
Speaker 4: to go up the following Monday night, and I saw
Speaker 4: Vicky Becker had filed. Noticed they weren't going to reprosecute him.
Speaker 2: So here's two officers come up to Maya door. I'm
Speaker 2: sitting in a sale. They talking about pack up. I said,
Speaker 2: pack up for what you got to leave you going?
Speaker 2: I said, go on where? And they wouldn't say nothing.
Speaker 2: So I said, well, man, don't you touch nothing in
Speaker 2: the sale. So I go down talk to the sergeant.
Speaker 2: I said where am I going? He said you going home?
Speaker 2: I said what I said? For real? He said, yeah,
Speaker 2: you've been set free.
Speaker 1: So you've only been out since just recently November twenty
Speaker 1: twenty two. How are things going for you. I understand
Speaker 1: it's been a little rough finding work.
Speaker 2: Well, because that's on my record seeing a lot of
Speaker 2: jobs out here? Now, is that the decent ones? You
Speaker 2: got to get background checks. And when they run the
Speaker 2: background check, the first thing they go they see this
Speaker 2: sixty year old man that's been all of work for
Speaker 2: so long, and Danny comes up. He was convicted of murder.
Speaker 2: So that doesn't look good on the background check.
Speaker 1: Well, maybe there's someone out there listening who might have
Speaker 1: a job for you. What kind of gear are you
Speaker 1: looking for?
Speaker 2: Well, anything in the factory, something, you know, something positive,
Speaker 2: something to keep me busy right now, just so I
Speaker 2: can get back on my feet. If they're out there
Speaker 2: in the Soalbin area, you sure I'll take the help.
Speaker 2: I'm not too proud to you anyhow.
Speaker 1: Great. Well, yeah, if there's anyone out there listening who
Speaker 1: could put Dwayne onto a job lead, we'd really appreciate it,
Speaker 1: of course. And you know, one of our listeners whatever
Speaker 1: avid listeners, and one of our great sponsors is Stephen
Speaker 1: Simon of the Indiana Pacers Organization he's one of the
Speaker 1: owners of the team. And Steven, if you're listening, this
Speaker 1: is a great guy here, you know, and maybe you
Speaker 1: have something for him. So I'm talking directly to you,
Speaker 1: and yeah, we appreciate everything you do for us, and
Speaker 1: we'll have links to get in touch with Dwayne in
Speaker 1: our bio. So thanks so much in advance. And now
Speaker 1: we come to the part of the show that I
Speaker 1: love the most, and of course it's called closing arguments,
Speaker 1: and this is where I turn off my MI, kick
Speaker 1: back in my chair, close my eyes and just listen
Speaker 1: to whatever else you all have to say. Let's kick
Speaker 1: it off with Michael Osbrook and Alex Dolan and then
Speaker 1: of course John Chenna with and then to you Dwaine.
Speaker 1: So Michael, why don't you go first?
Speaker 4: I think what I want to say in closing is, again,
Speaker 4: this should have ended in Judge Shoemaker's court, and the
Speaker 4: delay and getting Dwayne released is terrible, and obviously we're
Speaker 4: incredibly happy at it it worked out the end, but
Speaker 4: in a way it didn't to me.
Speaker 5: There are injustices happening in trial courtrooms every day. As
Speaker 5: somebody who's been at this trial level and has seen
Speaker 5: what goes on. There might be dozens of people in courtrooms,
Speaker 5: hundreds of people, thousands of people across the country who
Speaker 5: are going through this process and are being wrongfully prosecuted
Speaker 5: ultimately convicted for a crime they didn't commit. It's really
Speaker 5: important to be vigilant about stuff like that. Anytime that
Speaker 5: somebody is at home and they're watching the news and
Speaker 5: they see somebody accused of a terrible crime, my best
Speaker 5: piece of advice is to never jump to conclusions. So
Speaker 5: I would just encourage people to always have an open
Speaker 5: mind when somebody is charged with the crime. Charges are
Speaker 5: not convictions, and you never know if they have the
Speaker 5: right person or not, so it's extreme important to be skeptical.
Speaker 3: I just want to emphasize that Dwayne deserves all the
Speaker 3: credit in the world for going into federal court by
Speaker 3: himself and winning himself a new trial. I have all
Speaker 3: the admiration and respect for what he did. You know,
Speaker 3: I have to say that with Judge Simon made his
Speaker 3: decision and I heard about it, I was thrilled for him,
Speaker 3: but at the same time, it was sad to me
Speaker 3: that it had taken so long to get to that point.
Speaker 3: Justice delayed is justice denied and it's a continuing injustice
Speaker 3: that Dwayne is having trouble finding work because of a
Speaker 3: conviction for a crime that he's been exonerated of and
Speaker 3: that never existed in the first place.
Speaker 2: First of all, I just like to say thank you, man,
Speaker 2: just thank you for this time. Thank you for a
Speaker 2: chance for y'all to give me a chance to say
Speaker 2: a little bit about what happened. But a lot still
Speaker 2: needs to be done, man, because there's a lot of
Speaker 2: guys that are still in prison that it didn't commit
Speaker 2: a crime, that are just as innocent as I was.
Speaker 2: And our justice system, man, is it works for those
Speaker 2: that are capable and able to get the right people
Speaker 2: to work with them. Other than that, man, our system
Speaker 2: is not right, man, It's not right because they're putting
Speaker 2: people in prison. Some guys don't even get a fair shake,
Speaker 2: just like what happened in my trial. How many other
Speaker 2: people are in prison and locked up because they didn't
Speaker 2: have an expert witness on their side. And this is
Speaker 2: the reason why I say something needs to be done.
Speaker 2: But I thank you for my time, and I thank.
Speaker 1: You, thank you for listening to Wrawful Conviction Special thanks
Speaker 1: to our Wonderful production team Connor hall, Any Chelsea, Jeff Clyburn,
Speaker 1: and Kevin Watis, with research by Lyla Robinson. The music
Speaker 1: in this production was supplied by three time OSCAR nominated
Speaker 1: composer Jay Ralph. Make sure to follow us on Instagram
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